December 21, 2006

Between December 12 and 14, the Supreme Court headed by retired Chief Justice Aharon Barak, gave three important decisions relating to human rights, two of them related to the rights of the Palestinians in the occupied Palestinian territories and the third relates to the rights of the Arab citizens in Israel.

The first decision relates to the resolution amending the civil damages (state liability) (Amendment No. 7), enacted in the summer of 2005, which prevents Palestinians from the occupied territories to submit damage claims against the army authorities in Israeli courts, in the cases they were physically injured as a result of the practices of the Israeli army in the occupied territories. The Supreme Court ruled that the amendment is unconstitutional, because it violates the right to life, dignity, property and personal freedom for the Palestinians. Since this amendment exempts the State of Israel from any responsibility in case that the Israeli army forces caused physical damage to the Palestinians or to the property, even in circumstances where such damage was caused contrary to international and Israeli law.

In the second decision, the Supreme Court rejected a petition filed against the Ministry of building and Housing, which asked the court to cancel the use of the criterion of military service to grant larger amounts in housing loans (Almshknta) for those who did military or national service. According to this criterion, spouses who serve in the army or do national service can acquire assist in housing loans 125,000 NIS more that those who doesn’t do military or national service. The Supreme Court decided that there was no principal objection to granting privileges for those who do military and national services, provided that the use of the criterion of military service is legitimate in the circumstances of the matter. Judge Barak rejected the claim that the use of this criterion leads to a racial discrimination against the Arab citizens, who don't serve in the army for historical and political reasons.

In the third decision, the Supreme Court dismissed the petition filed in 2002, which demanded the prevention of assassination by the Israeli army against Palestinian resistance activists. The court decided that according to international law it can't prevent the assassination policy widely. The court stated that a general lines should be drawn that contain limitations and reservations from the use of such means, and every assassination act should be examined by it's relevant circumstances.

Chronology, the decision concerning the civil damages (state liability) amendment was made before the other two decisions. Therefore, the impression was made that there was a change in the approach of the Supreme Court concerning defending the rights of the Palestinians. In this case, the court was not subject to the pressures of the security and political authorities, and canceled a law enacted by the Knesset and recognized the rights of Palestinians in the occupied territories to get compensation in case they were harmed by the army (in certain circumstances).

However, in the two days following the Supreme Court first decision, the Supreme Court publishes another two decisions, which are in the contrary of the first decision from the point of view of the approach of the Supreme Court. Therefore, the question arises: Does the last two decisions constitute a change of the approach of the Supreme Court from what can be drawn from the first decision? Or, in the contrary, the first decision was actually a change of the approach of the Supreme Court since the establishment of the state.
In answering this question, we must not ignore the fact that the Supreme Court rejects, almost on a daily bases, tens and hundreds of petitions submitted to it by the Palestinians, on security grounds and sometimes in a decisions that constitute not more than a few lines. This situation has led some constitutional and Human Rights Law lecturers to say, that the frontiers of the activity of the Supreme Court in defending human rights stops inside the "Green Line", i.e. the language of the court changes automatically when talking about Palestinians from the occupied territories.

In several previous decisions of the Supreme Court, which related to the clear and harsh violation of Human Rights, the Court decided that the practices of state and the army was legal, in the contrary of the positions of the international community and international human rights organization, which reported that such practices are illegal at all. This is what happened, for example, in the Supreme Court's decision from May 14, 2006 not to cancel the Nationality and Entry into Israel Law (Temporary Order) 2003, which prevented the acquisition of any status in Israel for spouses from the West Bank and Gaza Strip, and prevented requests for citizenship for those spouses. This law not only affected the right of the Palestinians to have a the family but also affected the rights of Arab citizens of the State. International law organizations and human rights committees in the UN and EU condemned the law and asked for it to be revoked, as it embodied blatant violations to the basic rights of Arab citizens according to International Human Rights law.

The same was the case in the court decision regarding the apartheid wall in the occupied territories. The Supreme Court ruled that the construction of the wall is legal, despite the fact that the International Tribunal in the Hage, in an advisory opinion, made a decision that the wall was illegal because it violated international law.

In it's last decision the court does not prevent the policy of assassinations in the occupied territories, in an issue which is considered to be affecting harshly human rights, as the true meaning of these assassinations is the execution of the Palestinian resistance men outside the law and without a court order to do so.

And even in cases where the Supreme Court accepted petitions concerning Palestinians in the Occupied Territories, such as that prohibiting the Israeli army from the practice of torture during the interrogation of detainees, the evidence shows that those decisions did not prevent the security services from continuing of those practices.

With regard to the Arab citizens of Israel, the evidence shows that, despite the legal terminology used by the Supreme Court in it's decisions, especially of Justice Aharon Barak which is considered to be one of the famous judges in the world in defending human rights, the results on the ground are dramatically  opposed to the idea ingrained in the minds of the people. Petitions which are submitted almost on a daily basis to the Supreme Court in cases related to the rights of the Arab citizens, are rejected, in the majority of them, on different grounds, such as: the issues that are placed before the court are "general" and therefore the court can not give a decision concerning it; or that these issues relate to the political process within the State and the relations between the majority and the minority, and consequently deciding on these issues are the task of the Knesset and the government and not the function of the Court; or that the current situation and circumstances does not constitute racial discrimination towards the Arab minority, but rather preference positive attitude towards a certain group (always Jewish groups), as the Court did in its decision not to cancel the use of the criterion of military service for housing loans.

The Supreme Court refused, and continue to refuse, to recognize the Arab minority as a national minority, that have collective rights recognized by the international charters, in addition to the individual rights given to members of the minority for being an individuals. The Supreme Court has recognized only the individual rights of the Arab citizens, but in the same time it does not recognize the collective rights of the Arab minority and do not consider them as a group who faces discrimination because they belong to a minority. Thus, it does not see the mass and institutional discrimination that the Arab Minority is subject to.

According to theories on minority rights, the courts of the State are responsible for the protection of minorities of potential failures in the political process. But in the case of the Arab minority in Israel, the Supreme Court rejects these cases on grounds that they are related to the political process and therefore brings back the decision to the political institutions, where the failure was from the origin. Therefore, the court is constantly failing in achieving the targets of her as a constitutional court, which is the first and main function is to defend human rights, whether individual or collective.

The reality shows that the Supreme Court is an integral part of the Israeli political system, with the same concepts and political perceptions, and therefore are part of the Jewish consensus which is still not ready to accept the Arab citizens and to recognize their rights. On the contrary, theyare considered to be a security and demographic "threat". Even the Supreme Court itself has not yet developed the concepts appropriate to be able to accept these cases, and the courage necessary to bring about political changes on the ground in the relations between the Arab minority and the Jewish majority.

Therefore, the last two decisions constitute application of this vision and perceptions, and even it could be said that it was expected and not surprising given the history of the Supreme Court. On the other hand, in the view of the Arab association for Human Rights, the decision concerning the civil damages (state liability) amendment was out of rule, and even surprising, even though it constituted without doubt a positive step.

The first decision could be interpreted in that paying compensation to people infected by the army acts affected only material issues, whereas the decisions regarding the policy of assassinations and family reunification and torture, they are all related to the right to life and security. in such circumstances the court would yield to the allegations of security authorities that these steps and practices is necessary to maintain security, even at the expense of violating the fundamental rights of man.

21/12/2006